vicarious liability and seals


So I am back from my trips to Kosovo and Japan (how's that for a combo?  LOTs of frequent flier miles). Here's a tip – if someone suggests that you climb Mt. Fuji , don't.  It's brutal. 

But I have recovered and digress. 

Whilst I was away, neither the First Circuit nor the Maine SJC was exactly issuing decisions re Maine right and left.  (It's summer, it's the way life should be ….)  Two SJC decisions, however, bear noting.

Rainey v. Langen, 2010 ME 56 [].  This addresses under what circumstances a franchisor can be held vicariously liable for franchisee negligence.  The short answer is that the simple existence of the relationship isn't enough; nor is the type of control needed to protect the franchisor's trademark and the ultimate product.  But if the franchisor gets involved in how to arrive at the results in any controlling fashion, then it could be on the hook.  The franchisor here (Domino's) was found not to have become so involved as a matter of law.  Plaintiffs lawyers looking for a deep pocket in the future need to focus on Paragraph 22:  "If a franchisor takes further measures to reserve control over a franchisee's performance of its day-to-day operations, however, the franchisor is no longer merely protecting its mark, and imposing vicarious liability may be appropriate."  Happy hunting.  

Lloyd v. Estate of Robbins, 2010 ME 59 [].  This decision teaches that if you want the twenty-year statute of limitations for sealed instruments, the signatory needs to seal it, not just the notary.  The opinion also discusses when a cause of action accrues for breach of covenants – you have to look at each type of covenant separately.  Seisin and the right to convey accrue at the time of the delivery of the deed because they are personal covenants (despite the confusing existence of a statute from 1835 that appears to give a grantee authority to sue upon eviction).  Covenants of warrant and quiet enjoyment, in contrast, accrue at the time of eviction – except if the grantee has never been in possession, in which case the breach occurs at the time of delivery of the deed.  Because the record was mushy re whether there was such possession, the Court remanded to resolve disputed facts.  Justice Levy wrote the decision, and a lot of time must have been spent with some very old dusty Maine reporters (although the time between argument and decision was pretty short – about six weeks.)  From my Board of Bar Examiner days I can see that this is just the type of decision chock full of legal fundamentals that can provide fodder for an essay question.  At least when I was on the Board, dealing with statutes of limitations was always a popular topic on the exam, along with how to count time, because those are lawyer screw ups you want to make sure don't happen.